Monday, March 8, 2010

Some Thoughts on China’s Hukou System & Its Impact on Criminal Justice

A rare joint editorial was recently published in 13 major metropolitan newspapers in China calling for substantial reforms to the country's household registration (or hukou) system. For decades, the hukou system, which categorizes all Chinese citizens as either urban or rural, severely limited citizens' freedom to migrate within China. The demands of China's market economy have relaxed many of its most severe restrictions, but for millions of rural migrants working in China's cities, the hukou system still limits access to many basic government services and reinforces sharp inequalities between locals and outsiders.

This revived criticism of the hukou system also reminds us of recent illustrations of the system's impact on China's criminal justice system, most notably in Beijing, which has unique regulations requiring that all non-residents sentenced to prison serve their sentences in their home provinces.

As the article from Beijing Youth Daily (Dui Hua's translation below) reports, the importance of household registration extends to suspended sentences as well, with judges in Beijing admitting reluctance to grant suspended sentences to non-residents because of ambiguity over enforcement responsibility. With no legal clarity over whether "place of residence" refers to one's actual residence or one's hukou, judges fear that if offenders slip through the cracks and don't receive proper monitoring, criminals might re-offend and bring unwanted scrutiny during judges' performance appraisals. Therefore, the unstated rule applied by judges is that residents and non-residents be sentenced differently for similar criminal acts.

Interestingly, this ambiguity about the definition of "residence" appears to explain why Beijing police were able to hold "Charter 08" co-signer Liu Xiaobo under "residential surveillance" in an unspecified location—not in his Beijing home—from December 2008 to June 2009. Since Liu's hukou is in Liaoning Province, police there classified his home in Beijing as a "temporary residence," which, under one interpretation of the law, enabled them to choose a different location to carry out their "residential surveillance." There are other possible interpretations of "residence," but it is perhaps natural for the police to have chosen an option that gave them more flexibility—and makes it less clear that they acted "illegally" in so doing. And due to the hukou system (and Beijing's unusual rules), Liu will almost certainly serve his 11-year sentence for "inciting subversion" in Liaoning, rather than Beijing.

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Suspended Sentencing "Discriminates" Against Non-Residents
Household Registration Primary Factor in "Different Punishments for the Same Crime"
Separation from Place of Household Residence Leads to Unenforceable Supervision Vacuum

Reported by Hou Yijun, Beijing Youth Daily, February 20, 2010

Yesterday, this reporter randomly reviewed 60 verdicts in minor criminal cases published on Beijing court websites, 30 each involving Beijing residents and non-Beijing residents. It was discovered that of the 30 defendants who were Beijing residents, 27 received suspended sentences, whereas only five of the 30 non-Beijing residents received suspended sentences. "Generally, we don't give suspended sentences to non-resident defendants," confirmed a judge surnamed Chen who has many years' experience handling criminal cases. "Usually we just sentence them to time served." He blamed this situation on defects in the current system that enable most non-resident offenders serving suspended sentences to evade supervision.

The cases looked at by this reporter all involved minor crimes of assault, theft, or creating a serious disturbance, and all involved first-time offenders. Comparing a number of assault cases, factors such as the circumstances of the defendants' crimes, the consequences, and the attitude towards acknowledging guilt were all very similar. But all of the Beijing residents were sentenced to suspended sentences while none of the non-residents had their sentences suspended. Beijing defendants charged with theft received suspended sentences, even though the amounts stolen were higher than those stolen by non-resident defendants, who did not have their sentences suspended.

Is place of household registration really a determining factor in imposing a suspended sentence? Yesterday, this reporter interviewed criminal court judges from several courts. "This situation has been around for a while, though it's been particularly evident in the past few years," said Judge Liu. With the rise of crime that crosses regional borders and accelerated urbanization of rural villages, it is more common for people to be separated from their place of household registration, but the relevant laws have not kept pace.

Judge Liu said that according to the Ministry of Public Security's "Procedural Regulations for the Handling of Criminal Cases by Public Security Organs," which were announced and took effect in May 1998, "during the monitoring period of a suspended sentence, monitoring is to be carried out by the local police station of the offender's place of residence."

"Where exactly is 'the offender's place of residence'?" he asked. Provisions [concerning this question] differ in the Criminal Procedure Law and the Civil Procedure Law, which has caused confusion in enforcement. In practice, some [courts] send legal documents to the public security organ in the place where the offender [actually] resides, and others send them to the public security organ in the offender's place of household registration. When the offender's place of household registration and actual residence are not the same, it's easy for public security organs to pass the buck, each claiming that they cannot take on the monitoring of the offender serving a suspended sentence because the offender's residence or household registration isn't in their jurisdiction. In these cases, there's not much the court can do. In a few extreme cases, public security organs outside Beijing have even refused to accept the enforcement notices issued by Beijing courts, resulting in situations where [the court has] no one to notify about enforcement or delivery is delayed, leading to gaps in the transfer of supervision [over the offender]. In order to avoid these supervision "vacuums," Judge Liu therefore generally sentences non-residents to non-suspended sentences.

Judge Chen, who has many years of criminal trial experience, told this reporter of his own difficulties. "If a defendant re-offends after being sentenced to a suspended sentence, the judge personally bears responsibility. This is part of the appraisal mechanism." Thus, in order to avoid having their decisions to impose suspended sentences questioned because offenders serving suspended sentences carried out socially harmful acts after evading supervision or falling through the cracks, many judges simply do not dare give suspended sentences to non-residents, giving short incarcerations as a way of "sentencing to time served." This is better in terms of enforcement and does not necessarily increase judges' workloads, but it is also a major reason why non-residents rarely receive suspended sentences.

Several courts in Beijing reportedly have been actively thinking of ways to allow more non-resident defendants to enjoy suspended sentences. For example, the Miyun [County People's] Court has begun personally delivering offenders sentenced to suspended sentences to their original place of household registration in order to prevent them from falling through the cracks because of lax supervision. Professor Zhang Sihan of the National Judge's College recommends that courts and [public security] organs responsible for enforcing suspended sentences should act soon to establish effective and routine mechanisms to transfer supervision of suspended-sentence offenders. At the same time, the system of household registration should be reformed soon in order to keep up with the times.